Posted on 08/01/2002 1:48:01 PM PDT by wallcrawlr
Beware the Cyber Cops
Jonathan Zittrain
Even with safeguards, allowing the government to store Internet traffic is an awful idea. Our desire to form a cocoon against terrorists is understandable. But what little policy we've seen from the Justice Department seems to deal with terrorism as a medieval king would take on would-be assassins: ever-tighter boundaries around our national castle and increased surveillance and suspicion within. We should resist the notion that such heightened scrutiny, especially if inconspicuous to the public, carries no significant cost to law-abiding citizens.
Consider the range of proposals for unobtrusive but sweeping Internet monitoring. Most of them are doable as a technical matter, and all of them would be unnoticeable to us as we surf. Forbes columnist Peter Huber's idea is perhaps the most distilled version. Call it the return of the lock box. He asks for massive government data vaults, routinely receiving copies of all Internet traffic--e-mails, Web pages, chats, mouse clicks, shopping, pirated music--for later retrieval should the government decide it needs more information to solve a heinous crime. (See the Nov. 12 column at forbes.com/huber.)
The idea might sound innocuous because the data collected would remain unseen by prying eyes until a later search, commenced only after legal process, is thought to require it. Make no mistake, however: The idealized digital lock box and many sibling proposals are fundamentally terrible ideas. Why?
First, because supply creates demand. As soon as comprehensive databases of the public's communications or activities exist, the pressures to use them for purposes beyond those for which they were chartered will be inexorable. We might, for instance, create a database of all available e-mail traffic that would be searched for conspirators in a major terrorist act. But such a lode will surely be sought by defense attorneys--which means private parties coming to learn what's inside.
Law enforcement will want to try to track down murderers, deadbeat dads or even those who use file-swapping services to trade copyrighted music. (Yes, illicitly swapping enough copyrighted files is a crime.) What was intended as an emergency tool for limited cases will, by its own breadth of coverage and success at limited purposes, become commonplace for any behavior deemed harmful.
This is all the more worrisome considering the potential for misuse by those with access to gathered data. Our investigative authorities may be quite happy to ignore warrant requirements to develop intelligence--even if it means an inability to use the resulting evidence in court. And a system so convenient to use, evincing no visible intrusion upon those surveilled, serves as an irresistible invitation for purposes beyond those authorized.
To make snooping routine, rather than a reaction to a reasonable suspicion of particular wrongdoers, is the sine qua non of a police state. It means spying on people otherwise presumed innocent, since it means spying on everyone. It is precisely the shackles the populations of the East cast aside with the fall of the Soviet Union. For good reason did the framers of our Bill of Rights circumscribe what can be collected by authorities in the first place, rather than merely limit the uses of that data.
Most important, ubiquitous snooping calls into question our American identity. Suppose we could design a car that would report speeding the moment a driver exceeded the limit by more than 10mph, or that detected a driver's intoxication. A ticket could be automatically sent by mail, or a police officer summoned to the scene. Most Americans would cringe at such ideas despite their appeal. Freedom includes the choice to be a law-abiding citizen in lots of ways, realizing that only the most persistent or terrible misdeeds are eventually called to account. When we don't cheat on our taxes or steal from our workplaces, it's because we choose to be good--not because we're under constant threat of being caught and punished.
We must not allow our legitimate fright after last September's events to lead us into a sense that civil liberties are dispensable luxuries. Lock boxes should be saved for our material possessions, not the expressions of our thoughts and ideals.
Jonathan Zittrain, Harvard law professor; codirector, Berkman Center for Internet & Society.
Put a Price on Your Liberties
William Baldwin
In his op-ed piece on page 62, legal scholar Jonathan Zittrain makes an impassioned defense of the Fourth Amendment, which bans unreasonable searches and seizures. My contrary argument is that we should make it easier for cops to catch terrorists and, for that matter, rapists and coke dealers. The way to do that efficiently is to monetize the amendment. Let the police violate your civil liberties, but charge them a fee for doing so.
You would have a hard time finding any constitutional lawyer espousing so crass a view of our Bill of Rights. But some indirect support can be found in the writings of Richard Posner, the provocative theorist of the Seventh Circuit. On pure efficiency grounds, Judge Posner finds fault with the exclusionary rule. This is the 88-year-old decree from the Supreme Court excluding from trials any evidence the police turn up with unwarranted searches. No doubt the exclusion makes cops very mindful of the Constitution, but the main beneficiaries are criminals. Posner would use ill-gotten evidence but lay the police open to tort lawsuits for misbehaving. The main beneficiaries of such suits would be innocent people.
But who needs lawsuits? We could have a schedule of liquidated damages instead. For ransacking an apartment, $5,000; for a frisk or Breathalyzer test, $100; for sniffing a hard drive, $25; for using exotic hardware to spot handguns, $5, provided the person walking by the detector is in no way inconvenienced. The fees should be set high enough to fairly compensate most victims of searches and to make the cops pause before going on fishing expeditions. But a police detective with a big enough budget--and a good batting average--could act on a hunch without justifying his reasoning. Think how much time is wasted now when cops try to explain themselves, either before the fact to a magistrate who issues warrants or afterward to a judge in an evidentiary hearing.
Crass it may be, but it is economically efficient to replace a debate about the morality of a course of action with a checkbook. We have already begun to make this transition in environmental law: Instead of debating in court whether a polluter should add a scrubber to the smokestack, you charge so much a pound for sulfur dioxide and let the marketplace sort it out. Maybe economics could teach us something about police work, too.
I think I'm going to be sick.
And what a great idea. Police paying to violate liberties. But in reality it's not the police paying at all. No police officer will ever reach in his pocket. Not once. The taxpayer pays. And that means in effect you pay a fine to yourself for injustices committed against you.
I thought people who read Forbes were generally considered intelligent. How stupid does William Baldwin take his audience to be?
If they're going to do that, they may as well take it all the way and keep stored photocopies of all snailmail, tapes of all phone conversations, and hell, a 1984-style "telescreen" in every home.
That last part will probably have to wait a while due to cost and technology issues, but it's certainly not unreasonable, if the practices quoted above are reasonable.
Frankly, if they do decide to go ahead with the plan to record all Inet traffic, I will be very disappointed if they don't also photocopy all snailmail (well, at least all non-bulk first-class mail) and tape all phone calls.
Why?
Because otherwise I don't think we'll ever see the mass outrage necessary to nip this shit in the bud.
If you turn on encryption by default, you'll reduce the speed of the application. To Microsoft, it's better to be fast than secure.
And why is the crypto in a popular groupware system backdoored?
I guess you mean Lotus Notes, I don't know why IBM/Lotus did that, probably to get a Government contract.
Too late.
`Afraid so!
You know the answer.
Nonsense. With modern computers, strong encryption would affect the speed of the application less than the load of bells and whistles typically attached to the software. It would certainly be far faster than the bottleneck of transmitting the data over a dial-up, or even DSL, connection.
It's not nonsense, you are talking about usability. I was saying that the software would be faster if encryption was disabled vs. enabled and it's true, when encryption is enabled there is more overhead than when it's not on.
Here is another example then, freerepublic.com runs a web server (http). One day, JimRob desides to make it a secure server (https).
Are you really going to tell me that you wouldn't notice the extra overhead for every FR.com request becoming encrypted? The servers would definitely take a performance hit. You as the individual user might not notice a whole lot, but the server getting a few thousand encrypted requests/per minute is going to feel a bit different.
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